where orders emerge

Buying judges

In the fall of 2004, Terrence O’Donnell, an affable judge with the
placid good looks of a small-market news anchor, was running hard to
keep his seat on the Ohio Supreme Court. He was also considering two
important class-action lawsuits that had been argued many months before.

In the weeks before the election, Justice O’Donnell’s campaign
accepted thousands of dollars from the political action committees of
three companies that were defendants in the suits. Two of the cases
dealt with defective cars, and one involved a toxic substance. Weeks
after winning his race, Justice O’Donnell joined majorities that handed
the three companies significant victories.

Justice O’Donnell’s
conduct was unexceptional. In one of the cases, every justice in the
4-to-3 majority had taken money from affiliates of the companies. None
of the dissenters had done so, but they had accepted contributions from
lawyers for the plaintiffs.

Thirty-nine states elect judges,
and 30 states are holding elections for seats on their highest courts
this year. Spending in these races is skyrocketing, with some judges
raising $2 million or more for a single campaign. As the amounts rise,
questions about whether money is polluting the independence of the
judiciary are being fiercely debated across the nation. And nowhere is
the battle for judicial seats more ferocious than in Ohio.

An
examination of the Ohio Supreme Court by The New York Times found that
its justices routinely sat on cases after receiving campaign
contributions from the parties involved or from groups that filed
supporting briefs. On average, they voted in favor of contributors 70
percent of the time. Justice O’Donnell voted for his contributors 91
percent of the time, the highest rate of any justice on the court.

My colleague here at George Mason, Alex Tabarrok, has studied this question. You can hear him talk about it here. He finds that in states where judges face election, malpractive awards are $35,000 higher than in states where judges are not elected.

In Deuteronomy 16:18, the Israelites are told to appoint judges. The next sentence is that these judges should not take gifts or bribes because they blind the eyes. Seems like a very good idea. Incentives matter.